An Australian bill criminalizing ‘conversion therapy’ may harm kids deemed ‘trans’ as well as those who treat them

As Bill C-6 is debated in Canadian Parliament, a similar bill addressing “conversion therapy,” has been introduced in Victoria, Australia. The Change or Suppression (Conversion) Practices Prohibition Bill 2020 states, “A person’s sexual orientation or gender identity is not broken and in need of fixing.” This is true enough, in the context of sexual orientation, but is incoherent when applied to gender identity.

Kids who claim or are said to “identify” with a “gender” that does not match their sex often end up on medical pathways that involve puberty blockers, cross-sex hormones, and body modification surgeries like double mastectomies and vaginoplasties. If these interventions are not a “fixing” of something that is assumed to be broken, what is?

The bill’s stated purpose is to “denounce” and prohibit practices aimed at changing or suppressing a person’s sexual orientation or gender identity. Should the bill pass, a commission would be set up to investigate accusations of “conversion therapy,” and to distribute punishments for violations. The legislation would establish four new criminal offences: 1) Intentionally engaging in a change or suppression practice where that conduct causes either “injury” or, 2) “serious injury” to another person; 3) Taking a person out of Victoria to be subject to a change or suppression practice where that practice causes injury; 4) Advertising change or suppression practices.

The maximum penalties for an individual are up to $200,000 in fines and 10 years in jail (with substantially higher fines for body corporates).

The bill also proposes to modify the Victorian Equal Opportunity Act — specifically, its definitions of gender identity and sexual orientation as attributes protected from discrimination — and also to modify the Family Violence Protection Act to include the denigration of a family member’s sexual orientation as a form of emotional or psychological abuse. The bill passed in the Lower House on December 10, and is likely to pass in the Upper House early in the new year.

The term “Orwellian” is perhaps overused these days to refer to the social and legal enforcement of gender identity ideology — that is to say, the notion that every person has an internal, subjective sense of themselves as a man, woman, or neither, and that this identity is an appropriate replacement for biological sex. But what this bill seeks to do is at the very least dystopian, entrenching an “affirmation-only” approach to “gender identity” throughout the state.

The bill has local politicians between a rock and a hard place, given that any opposition to or criticism of the bill can be reframed as a lack of support for gay people, especially those on record as having suffered under conversion practices in the past. The mainstream media are in a similar position. Given that the public still thinks “conversion therapy” equates to practices like boiling lesbians half to death, then dumping them into an ice bath (as portrayed in the Netflix series, Ratched), no progressive wants to come out against such a bill.

Perhaps for this reason — or perhaps because they were watching Ratched instead of actually reading the through the bill — many gay Victorians support The Change or Suppression (Conversion) Practices Prohibition Bill 2020, even though it proposes changing the definition of sexual orientation in the Equal Opportunity Act from “homosexuality (including lesbianism), bisexuality, or heterosexuality” to “a person’s emotional, affectional, and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.” It remains unclear who will be considered to have a minority sexual orientation under this new definition, and whether the new definition will continue to protect the people the old definition was intended to protect: gay, lesbian, and bisexual people. Two LGB groups — LGB Australia (which was previously LGBT Australia but unceremoniously split from the “T” earlier this year) and the LGB Alliance Australiatake issue with the bill on behalf of their members and what they see as the interests of the LGB community.

From a feminist perspective, it makes little sense to oppose efforts to prohibit the change or suppression of sexual orientation. It is the inclusion of “gender identity” in the bill that is the problem. During the Lower House debate in Parliament, Liberal MP Louise Staley explains:

“As… same-sex attraction is an innate and normal sexual orientation, such attempts [to subject people to conversion therapy] were not only often barbaric, they were fundamentally useless. To put beyond doubt that Victoria rejects any attempt to change that which is not broken is to be applauded…”

She followed up boldly, saying:

“… I now turn to the gender identity aspects of the bill. I stand with Rowling, and I stand with Keira Bell. For several years I’ve taken a strong interest in the growing marginalization of womens’ and girls’ rights as subservient to gender identity activists.”

To talk of “change or suppression” in relation to gender identity is misleading. It presupposes that gender identities are fixed things everyone has, that we access by way of introspection: Look deep inside and you will see whether you are really a “man,” a “woman,” or “nonbinary” (neither a man nor a woman). Maybe you will even see something special and new, outside of these three categories. Whatever you see, you are. You can’t be wrong — you are the expert.

This view presents gender identity as similar to sexual orientation, in that we ourselves know what we are. But they are not the same. Generally people don’t think they are gay when they’re not. There is no social status to be gained — at least in most contexts — from claiming to be gay (although claiming “queer” identity has become popular, of late). If someone is mistaken about being gay, there are no real consequences to that mistake. We can easily verify whether a person is plausibly gay, based on who she has sex with, or enters into romantic relationships with. (Not that we would generally need to do this). The same is not true of gender identity; there’s no verification beyond a person’s say-so.

Over the past 30-odd years, the concept of “transsexualism” has morphed into “gender identity.” That shift has led to a massive expansion of the category of people considered to be “trans,” which now refers to those considered to have “gender identities” that deserve special protection.

During the 1960s to 1980s, the term “transsexual referred to a small number of men who wanted to live as women. Some of these men experienced feminine boyhoods and were homosexual, while others felt sexually aroused by the idea of themselves as women (autogynephilia), and were attracted to women. The former tended to transition earlier in life and the latter tended to transition later, but most transitioned, meaning they had sex reassignment surgery to make their bodies as close to female bodies as surgery and medicine (particularly cross-sex hormones) could achieve. This was a very small group of men, and because there was a lot of discrimination against them at the time and a lot of them desired to pass as female, it made sense to give this group legal protections as the opposite sex. After all, some would be assumed to be women due to their appearance, and it could be damaging for those people to have to “out” themselves as transsexuals in cases requiring identity documents.

The shift from transsexualism to gender identity was both political and cultural/ideological. Politically, large non-governmental organizations that had been handsomely funded to work for gay rights were at a loss after gay marriage was won, and needed not only to find a new cause, but to grow their constituency. As a result, organizations like Stonewall in the UK not only turned their attention to trans rights as the next civil rights frontier, but expanded the scope of “trans,” encouraging other social groups to gather under the trans umbrella (cross-dressers and “non-binary” people, for example). Culturally, a number of academics — some of them trans — began to push gender identity ideology in their work and in the university, informing their readers that sex was a social construct, that the real problem with gender wasn’t that it shaped men to be one way and women to be another, but rather the hierarchy between the two groups and the devaluing of femininity, arguing that we should “queer” gender by performing it differently. People began claiming to be the opposite sex or even no sex at all, and the second wave feminist conception of gender as sex hierarchy began to be blurred into nothingness until all that was left was the mysterious notion of an internal, subjective, “gender identity.”

Because “gender identity” is an evolution of the idea of “transsexualism,” it is unfortunately associated with the idea of transforming the physical body. Even though some in the trans community argue the legitimacy of one’s “gender identity” is not dependent on medical transition, it is still common for trans-identified people to choose to go on cross-sex hormones or have surgery. If “gender identity” were really limited simply to feelings or expression, and not body modification, perhaps the issue would not be the subject of such heated debate. But it isn’t. A 2015 study of more than 27,000 trans people in the United States found that 36 per cent of trans men had chest reduction or reconstruction surgery.

There is evidence that youth who claim a trans identity are often LGB, autistic, struggling with mental health issues, or have been exposed to gender identity ideology through social media or peers. If these kids are affirmed and supported in their claimed gender identities — which is what the bill demands, lest adults charged with supporting or treating such kids be accused of “conversion therapy” —  the result could be the “conversion” of gay kids; autistic kids; kids with mental health problems; and kids who have simply been influenced by peer groups, social trends, or online forums to identify as trans, which sets many on a path toward puberty-blockers, cross-sex hormones, and surgeries, all of which can lead to a loss of sexual function and infertility, as well as other long-term health risks. These practices remain experimental, as the UK High Court recently determined in a case brought by detransitioner, Kiera Bell, which found that under 16-year-olds are likely to lack the competence to consent to medical transition.

Opponents will say there’s a difference between being subject to change or suppression practices that try to change what you know you are, and being subject to affirmation of an identity that turns out to be incorrect. The former can fill a person with shame and guilt that has lasting effects, while the latter is said to be harmless: an individual can simply change their mind about their “gender identity.” But this is naïve. Between 73 – 88 per cent of pre-puberty kids with trans identifications desist in that identification. The most likely outcome of childhood cross-gender identification is homosexuality or bisexuality. Whether a kid is put on puberty blockers seems to determine whether or not she will desist — most kids put on puberty blockers go on to cross-sex hormones, and most kids not put on puberty blockers desist. Detransitioners — people who once identified as trans but have come to reject that identification — exist. Peer contagion has been shown to have a notable effect on the likelihood of youth to identify as trans. The Bell v. Tavistock judgement noted several studies linking trans identification and autism, with 45 per cent of patients at Melbourne’s youth gender clinic showing features of autism. Given that a “mistaken” trans identification could lead to unalterable physical consequences and lifelong impacts on health, there is good reason for adults involved with trans-identifying kids to approach them with caution, rather than unquestioning “affirmation.”

Passing the kinds of “conversion therapy” bills currently being debated in Canada and Victoria ensures a more cautious, questioning approach is virtually impossible. Telling a kid that she might not in fact be trans is likely to be considered as a “change” or “suppression practice” under this legislation, and could make a person liable for criminal charges. That should be reason enough for LGB groups, feminist groups, parents, and anyone else concerned about the unnecessary medicalization of children struggling with a variety of personal, social, or mental issues to support amendments to the legislation removing gender identity entirely.

We can support LGBT youth without criminalizing those who work to ensure minors don’t make mistakes they may regret deeply as adults.

Holly Lawford-Smith is a Senior Lecturer in Political Philosophy at the University of Melbourne. Her second book, Gender Critical Feminism, should come out in 2021.

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